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December 01, 2008

FTC Says Testimonial Guides Due for Overhaul

The FTC announced proposed revisions to the Guides Concerning the Use of Endorsements and Testimonials in Advertising (“Guides”). In January 2008, the FTC sought public comment on the benefit of updating the Guides, which have remained unchanged since 1980.

The Commission determined the Guides needed an update to incorporate principles that have been established through more recent FTC enforcement actions. Additionally, several proposed revisions result from a better understanding of how consumers interpret testimonials.

Two items are of particular note. First the FTC has long held the position that an endorser can be held liable for misleading claims and has brought several cases, with mixed results, including one against former Los Angeles Dodger, Steve Garvey. The proposed revisions seek to make this principle clear.

Second, the proposed revisions would require that testimonials that do not describe a typical consumer experience be accompanied by a clear and conspicuous disclosure of the results that consumers can generally expect. Currently, the Guides only require that testimonials be accompanied by a disclaimer that the depicted results are atypical if they are not reflective of expected results. The proposed change would require all marketers to conduct some type of proof of “generally expected results” prior to publishing an advertisement, and disclosure of the typical experience a consumer could expect to receive. We have seen such a requirement of a more particular disclaimer in some weight loss consent decrees, (see Weight Watchers and Jenny Craig), although this has not been the norm. But such an approach generally may have been on the FTC's mind for some time. In 2002, former BCP Director Howard Beales indicated he thought the Guides' approach of allowing an "atypical" disclaimer discouraged research and disclosure as to what was an expected consumer experience.

The FTC is seeking public comment on the proposed revisions before January 20, 2009.